Citation NR: 9636850
Decision Date: 12/31/96 Archive Date: 01/06/97
DOCKET NO. 95-02 0072 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Hartford, Connecticut
THE ISSUE
Entitlement to service connection for a psychiatric
disorder.
REPRESENTATION
Appellant represented by: AMVETS
WITNESSES AT HEARING ON APPEAL
Appellant, Appellant’s father, and [redacted].
ATTORNEY FOR THE BOARD
Neil T. Werner, Associate Counsel
REMAND
The veteran served on active duty from September 1969 to
October 1969.
The veteran contends that he has a psychiatric condition as a
result of having experienced traumatic events while in boot-
camp on Paris Island.
The veteran filed his original claim for disability in June
1994 claiming a service connection for a bipolar disorder.
In a Rating Decision dated December 1995 the claim was
denied. However, after this original denial, a hearing
officer in his April 1996 Decision and Supplemental Statement
of the Case expanded the veteran’s claim from a claim for a
service connection for a bipolar disorder to that of a
service connection for a psychiatric disorder.
Veteran’s induction medical records for June 1969 reveal
that appellant upon entering the service neither complained
of, nor was diagnosed with, having a psychiatric disorder
except for a history of bed wetting.
Appellant’s September 1969 service medical records state that
veteran complained of having passed out and that he was
suffering flash backs from having taken LSD. Appellant’s
record also reveals that appellant was sent to the motivation
platoon and was then reported as pouting, stubborn, resistive
and vigorously unmotivated for training. Lastly, the
appellant’s Medical Board findings for late September 1969
state that appellant was diagnosed as having a preexisting
passive aggressive personality disorder that rendered him
unsuitable for further service and which was deemed permanent
in nature.
Veteran’s VA medical examination in August 1994 state that
appellant was diagnosed as having bipolar disorder with manic
episodes. The VA examination also states that, contrary to
his service records, veteran has a bipolar disorder that
dates to the time of his service in the Navy.
Additionally, appellant submitted a letter from a Doctor
Vipin C. Pattel dated July 1995. In this letter Dr. Pattel
states for the first time that veteran suffers from post
traumatic stress disorder (PTSD). Dr. Pattel also states
that he has treated veteran since October 1992 and that
appellant is also diagnosed with having bipolar disorder,
mixed type; chronic; and obesity. Dr. Pattel states that
appellant told him that he had his first psychiatric
admission while in the Marine Corps, that this was brought on
by physical and mental abuse leading to hallucinations and
his harboring anger towards others. Dr. Pattel also stated
that veteran gets frequent flashbacks of adverse experiences
of verbal and mental abuse experiences while in the Marine
Corps..
Appellant submitted additional private medical records
detailing the course of his diagnoses and treatment for
psychiatric disorders from December 1984 to July 1995. All of
veteran’s further medical records stated that appellant was
diagnosed with having major affective disorder bipolar manic
and a prior history of drug and alcohol abuse.
Veteran also submitted a July 1995 letter from the Social
Security Administration stating that he is disabled as of
September 1992 and that he is suffering from an affective
disorder.
Lastly, appellant submitted two lay affidavits from June 1995
from a [redacted] and a [redacted] [redacted]. Mr. [redacted]
states that he first met veteran after his discharge from the
service. Mr. [redacted] then states that during the course of
their friendship he observed that appellant spent days in bed
unable to wake up, suffered from a manic episode, was
hospitalized and became unable to work because of his
condition. Mr. [redacted] stated that he knew appellant and
his family since 1964. Mr. [redacted] further states that in
April of 1970 he accidentally found appellant in New York
City where he was homeless and took care of him for nine
months. Mr. [redacted] stated that during the period he cared
for appellant, veteran had trouble sleeping, was agitated and
appeared sad.
At veteran’s hearing in May 1995, the appellant and his
witnesses stated that veteran’s current psychiatric condition
was caused while on active duty. It was alleged that the
Marine Corps Medical Boards finding that veteran suffered
from a pre-existing illness was erroneous in view of
appellant having had a normal child hood where he did not
complain of, shown or been treated for psychiatric problems.
Appellant also stated that he waited 25 years to fill a claim
with the VA because he did not know he was entitled to
benefits until this time. Veteran also states that he was
struck by his drill sergent on at least two occasions and
that on one of these occasions he was taken away by military
police officers in handcuffs. Appellant claims that he
suffered sensory hallucinations while in service due to the
heat and physical abuse. Veteran states that he had not
taken drugs before his entry into the service and that he
had only experimented a little with alcohol. Appellant’s
witnesses stated that after appellant’s discharge he acted
different; he neglected his appearance and hygiene and his
speech was irrational and disjointed. Veteran states that
after his service he traveled for a few years around Florida
and New York City. While in these locations veteran either
worked in menial jobs or begged for a living. Additionally,
veteran stated that he was living on the streets at this
time. Appellant claims that during these years he was very
confused and suffered from visual hallucinations. Appellant
states that he sought medical treatment for his condition
sometime prior to 1984 Dr. Shore, in Ledyard, Connecticut,
Dr. Mackero and Dr. Deutsch in Connecticut. Appellant prior
to the hearing was unable to obtain these doctors medical
records. Veteran further stated at the hearing that his
service medical records where inaccurate in that when he
told the doctors in the Marine Corps that he was suffering
from LSD flashbacks he was just using it as an analogy as to
how he was feeling, not that he was actually suffering
flashbacks from having taken recreational drugs. Appellant
also reasserts that he did not take recreational drugs
before entering the service. Appellant attributes his
current psychiatric condition and his problems for the last
twenty-five (25) years to his treatment in the Marine Corps.
In adjudicating a claim for service connection for PTSD, the
Board is required to evaluate the supporting evidence in
light of the places, types, and circumstances of service, as
evidenced by the veteran's military records, and all
pertinent medical and lay evidence. 38 U.S.C.A. § 1154(b);
38 C.F.R. § 3.304(f) (1993); see Hayes v. Brown, 5 Vet.App.
60, 66 (1993). Additionally, service connection for PTSD
requires medical evidence establishing a clear diagnosis of
the condition, credible supporting evidence that the claimed
in service stressor actually occurred, and a link,
established by the medical evidence, between current
symptomatology and the claimed in service stressor. See
Zarycki v. Brown, 6 Vet.App. 91, 97 (1993).
In West v. Brown, 7 Vet.App. 70 (1994), the Court elaborated
on the analysis in Zarycki. In Zarycki, the Court held that
in addition to demonstrating the existence of a stressor, the
facts must also establish that the alleged stressful event
was sufficient to give rise to PTSD. Id. at 98-99. In West,
the Court held that the sufficiency of the stressor is a
medical determination, and therefore adjudicators may not
render a determination on this point in the absence of
independent medical evidence. Id. at 79.
Upon reviewing Zarycki and West, it appears that in
approaching a claim for service connection for PTSD, the
question of the existence of an event claimed as a
recognizable stressor must be resolved by adjudicatory
personnel. If the adjudicators conclude that the record
establishes the existence of such a stressor or stressors,
then and only then, should the case be referred for a medical
examination to determine the sufficiency of the stressor and
whether the remaining elements required to support the
diagnoses of PTSD has been met. In such a referral, the
adjudicators should specify to the examiner(s) precisely what
stressors have been accepted as established by the record,
and the medical examiners must be instructed that only those
events may be considered in determining whether stressors to
which the veteran was exposed during service were of
sufficient severity as to have resulted in the current
psychiatric symptoms. In other words, if the adjudicators
determine that the existence of an alleged stressor or
stressors in service is not established by the record, a
medical examination to determine whether PTSD due to service
is present is pointless. Likewise, if the examiners render a
diagnosis of PTSD that is not clearly based upon stressors in
service whose existence the adjudicators have accepted, the
examination would be inadequate for rating purposes.
The VA has a duty to assist a claimant in the development of
facts pertinent to his or her claim under 38 U.S.C.A. § 5107
(West 1991 & Supp. 1996) and 38 C.F.R. § 3.103(a) (1995).
Fulfillment of the duty to assist the appellant includes the
procurement and consideration of any relevant VA or other
medical records. Ferraro v. Derwinski, 1 Vet.App. 326
(1991).
A review of the record indicates that further development
remains to be accomplished. In particular, it does not
appear that the RO has attempted to verify the stressful
incidents related by the veteran with the appropriate
government bodies i.e. are there any incident reports
supporting veteran claims that he was struck by his drill
sergent on two occasions and on one of the occasions taken
away in handcuffs by military police officers. Additionally,
the veteran’s August 1994 VA examination states that veteran
was first diagnosed with a bipolar disorder while in service.
This statement is contrary to the service medical record
findings. The RO must therefore undertake to verify whether
or not this statement is simply a clerical error or whether
the doctor has examined veterans’ medical records and has
found that the previous diagnoses of the veteran’s condition
while in the service was in error. Lastly, the RO must more
fully develop Dr. Pattel’s diagnoses that states that veteran
is having flashbacks to traumatic events in service that are
causing him and/ or is symptomatic of PTSD.
In light of the foregoing, and in order to fairly and fully
adjudicate the veteran’s
claim, the issue of service connection for PTSD is REMANDED
to the RO for the following action:
1. The RO should contact the veteran in
order to obtain specific information
concerning his alleged stressful event in
service or stressors that have been
identified in connection with his claimed
PTSD. This should include dates, places,
unit assignments, information concerning
any other individuals involved in the
events, including their names, ranks,
units of assignment or any other
identifying detail, and any other
circumstances surrounding these events.
The veteran should be advised that this
information is vitally necessary to
obtain supportive evidence of the
stressful events and that he must be as
specific as possible because without such
details an adequate search for verifying
information can not be conducted.
2. The RO should take appropriate steps
to contact the veteran and request the
names, addresses, and approximate dates
of treatment of all other health care
providers, VA and private, who have
treated him for PTSD or other psychiatric
disability since his discharge from
service. He should be asked to provide
the dates of treatment. When the veteran
responds and provides any necessary
authorizations, the named health care
providers should be contacted and asked
to submit copies of all medical records
documenting their treatment that are not
already in the claims folder.
3. The RO should take appropriate steps
to contact the VA examiner who prepared
the August 1994 “opinion” and seek a
clarification of his statement as to the
origins of the veteran’s bipolar
disorder.
4. With the additional information
obtained and the evidence currently of
record, the RO should review the file and
prepare a summary of all the claimed
stressors. This summary, together with a
copy of the DD 214 and the USMC NAVMC
Form 118, or equivalent, and all
associated documents, should be sent to
the Commandant of the Marine Corps,
Headquarters, United States Marine Corps,
Code MMRB, Quantico, Virginia 22150.
They should be requested to provide any
information that might corroborate or
verify the veteran's alleged stressors.
Specifically, the should look for police
reports and/or incident reports
concerning the veteran for September 1969
through October 1969 that confirm or
deny veteran’s claims to having been
struck by his drill sergent and/or taken
into custody by military police officers.
5. If, and only if, the RO determines
that the record establishes the existence
of a stressor or stressors, then the RO
should schedule the veteran for an
examination by a board of two VA
psychiatrists, if available, who have not
previously examined him, to determine the
diagnosis of all psychiatric disorders
that are present. The RO must specify
for the examiners the stressor or
stressors that it has determined are
established by the record and the
examiners must be instructed that only
those events may be considered for the
purpose of determining whether exposure
to a stressor in service has resulted in
current psychiatric symptoms and, whether
the diagnostic criteria to support the
diagnosis of PTSD have been satisfied.
The examination report should reflect
review of pertinent material in the
claims folder. The examiners should
integrate any previous psychiatric
findings and diagnoses with current
findings to obtain a true picture of the
nature of the veteran's psychiatric
status. If the diagnosis of PTSD is
deemed appropriate, the examiners should
comment upon the link between the current
symptomatology and one or more of the in
service stressors found to be established
by the RO. The report of examination
should include the complete rational for
all opinions expressed. All necessary
special studies or tests, to include
psychological testing and evaluation,
such as the Mississippi Scale for Combat-
Related post- traumatic stress disorders,
should be accomplished. The claims
folder, or copies of all pertinent
records, must be made available to the
examiners for review prior to, and
during, the examination.
6. The RO should then review the record
and the claim should be readjudicated.
If the determination remains adverse to
the veteran, both the appellant and his
representative, should be provided a
supplemental statement of the case that
includes a summary of additional evidence
submitted, any additional applicable laws
and regulations, and the reasons for the
decision. The veteran and his
representative should be given the
opportunity to respond within the
applicable time.
Thereafter, the claim should be returned to the Board for
further review. No action is required of the veteran until
he receives further notice. The Board does not indicate any
factual or legal conclusion as to any final outcomes
warranted in the appeal.
STEVEN L. COHN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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